HKSAR v. Tsang Wing Hong

DCCC 901/2022

[2023] HKDC 1604

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 901 OF 2022

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REASONS FOR SENTENCE

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1.The D pleaded guilty to 2 charges of pickpocketing

Charge 1

2.On 10 March 2022 at about 5:35 pm, the police observed the D approached the victim on her left hand side and stole her mobile phone from her left pocket.

3.As soon as the D noticed that she was under observation by the police, she returned the victim’s phone back to the staff of the store.

Charge 2

4.On 12 July 2022 at about 1:08 pm, the D followed the second victim into the Home Market store and started to engage in a short conversation.

5.Later, the second victim found her mobile phone inside her shoulder bag was missing.

6.CCTV showed that the D used her left hand to steal the second victim’s mobile phone from her shoulder bag and operated the phone for about 6 seconds.

Arrest

7.The D was arrested on the same day for the offence of theft.

Criminal record

8.The D has 4 court appearance with 6 conviction records between 2010 to 2020.

9.Two are pickpocketing’s in 2019 and 2020 while one record of theft in 2012.

Mitigation

10.The D is now 49 years old.  She lives with her husband in a public housing unit.  They do not have any children and there is no financial pressure upon the family.

11.Today, her husband is in court.

12.The D also submitted a mitigating letter to tell me that she suffers from epilepsy and asthma.  From my point of view, this does not amount to mitigating as they can be medically treated in the prison.

Sentence

13.The D accepted that the sentencing principle of pickpocketing can be found in the case Ngo Van Hay CACC 107/ 2004 that a sentence after trial for a first time offender would be in the range of 12 to 15 months’ imprisonment.

14.In Charge 1 – the D and PW1 was inside the Premium Meat Store.  Obviously, PW1 was doing her shopping and did not pay attention to the D who was nearby.

15.The D had no business inside the Store, she was looking for someone who she could steal items from.

16.From the photos, I can see that it was a crowed area with a lot of shoppers.

17.As to Charge 2 – it was also inside the shop.  The D engaged in a conversation with the second victim.  Clearly with a view to distract her attention and to steal from her.

18.In both charges, the stolen properties are mobile phones.  They are valued at $2,100 and $5,000 respectively.

19.Mobile phones have resale value in the second market and are easy for the D to dispose of them.  However, the loss of mobiles definitely caused a great deal of inconvenience to the victims as they contained a lot of personal information, data, photos and etc.

20.The loss of a phone can be replaced by buying a new one.  But the information contained in the phone may be lost permanently.

21.I accepted that it was fortunate that the mobile phone in  charge 1 had been recovered.

22.As such, the circumstances of stealing of the phones put the sentence at a higher range of 15 months as the starting point.

23.The defence accepted that there are aggravating features in the present case:-

(a)  Charge 1 - crowded area;

(b)  Charge 2 – the victim was at a corner of a shop when the D talked to her. In that area, it only has a small space to allow a person in front of the shelves. By talking to the victim, she was totally off-guarded and did not expect the D who appeared as a housewife was in fact a thief. The victim became her target and her phone was stolen.

I therefore enhanced the sentence of each charge by 3 months.

24.The D has 2 previous pickpocketing conviction records.  I further enhance the sentence by 3 months to deter the D for committing further offence and to protect the general public in the future.

25.Charge 2 was convicted while on court’s bail of Charge 1, a further enhancement of 3 months.

26.Total sentence for each charge:-

(a)  Charge 1: 21 months (15 + 3 + 3), given 1/3 discount, it arrives at 14 months;

(b)  Charge 2: 24 months (15 + 3 + 3 + 3), given 1/3 discount, it arrives at 16 months.

Totality

27.I order 7 months from Charge 1 to run consecutively to Charge 2.

Order

28.The D is ordered to serve a sentence of 23 months (16 + 7).